United States Court of Appeals The Tenth Circuit ______________________________________ CCA Tenth No. 09-xxxx USTC No. 17xxx ________ Marian L. M. Appellate-Petitioner V. The Commissioner of Internal Revenue Appellee -- Respondent __________ Brief of Petitioner – Appellant _________ Appeal from the United States Tax Court
Marian L. M.
Wichita, KS 67211
Appellant, pro se
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Table of Contents
Page 2 Table of Contents 2 Disclosure of Corporate Affiliation 2 Summary of Argument 3 Statement of the Issues 3 Table of Cases, Statues and Authorities 3 Statement of Jurisdiction 4 Statement of the Case 5 Statement of Facts 13 Argument: 13 Issue A: Recall Letter Must be Accepted 16 Issue B: The face-to-face hearing was required 18 Conclusion 18 Certificate of Service 19 Exhibit A: Copy of Marrett case
Disclosure of Corporate Affiliations
Appellant does hereby certify that neither party is a publicly held corporation, nor a parent, subsidiary or affiliate of a publicly held corporation. No publicly held corporation or business has any interest in the outcome of this appeal. Appellee is a government body.
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Summary of Argument:
Congress passed a law mandating collection hearings after serious revelations of IRS misconduct. The populace will only support the tax system if they perceive it is fair, just and reasonable.
Statement of the Issues
A. Taxpayer should be allowed to withdraw arguments classified as frivolous
B. The face-to-face hearing was required
Table of Cases, Statutes and Authorities
1. Cases Page Marrett v. CIR Docket 4048-061, July 7, 2006 12 2. Statutes IRC §6330; Right of Hearing on IRS Collections throughout
Statement of Jurisdiction
The Respondent-Appellee is the Internal Revenue Service and this case deals with a collection due process hearing before the IRS.
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United States Court of Appeals
For the Tenth Circuit
Marian L. M. CCA Fourth No. 09-xxxx
Appellant-Petitioner USTC No. 171-xxx
V.
The Commissioner of Internal Revenue
Appellee--Respondent
Brief of Petitioner-Appellant
Appeal from the US Tax Court
I. Statement of the Case
1. This case began when the Appeals Division of the IRS issued their Notice of Determination on November 30, 2006, pertaining to Appellant’s prior request for a collection hearing under IRC 6330.
2. Taxpayer’s Recall Letter was sent on December 27, 2006 (Appendix 03).
3. Appellant on January 3, 2007 filed her Petition for Redetermination to the US Tax Court. (Appendix Page 05; Docket Number 01).
4. The Honorable Julian I. Jacobs, Judge USTC issued his Order and Decision on May 22, 2009 (Appendix page 18; docket # 20), which finalized the Memorandum Opinion dated May 20, 2009(Appendix page 08; docket #19).
6. Motion to Vacate by Petitioner was filed on June 15, 2009, and denied without discussion on June 29, 2009. (Appe pg 19; doc # 21).
7. Notice of Appeal was filed on July 27, 09. (Appe 22 doc #22).
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II Statement of the Facts
A. State of the Courts
1. The US Tax Court has a reputation of being partial to the IRS and no more than a lackey to the Commissioner. This is untrue and unfair to the fine judges of said administrative law court, with a few exceptions. Appellant has no information other than that the administrative law judges are fair, honest, and equitable to the greatest extent possible for the last decade or so, with few minor exceptions.
2. Appellant -Petitioner proceeded in this case as a pro-se litigant as many Patriots are active in many courts and inevitably represent themselves. Some of them trash the court system, are highly disrespectful to the judges, and make no effort to follow the rules.
3. The patriot community in court includes three groups:
A. Those classified as “paper terrorists”, who file voluminous pleadings which have nothing to do with the issues at hand and violate every rule of the court, even decency. The courts have penalties and other mechanisms to punish them for their wrongdoing, and encourage them to follow procedure. In general, the Tax Court is lenient.
B. Respectful patriot pro se litigants are those politically minded individuals who end up in the court system but learn and follow the rules. Their pleadings are filed timely, are relevant to the issues, etc. These individuals attend classes, do their homework and consult with paralegals who advise them of the court processes. The Tax Court judges return their respect, accommodate them in many ways, and tolerate their mistakes.
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C. Mistaken troublemakers are the self-represented who follow the rules, but are mistaken classified by the judges as “paper terrorists”, and are treated more harshly than necessary. This happens quite frequent in US District Court especially when a gentleman pro-se follows a paper terrorist who disrespected the judge.
4. The Tax Court and all of the Federal Courts of Appeal are generally even-handed to pro-se litigants, even those classified as right-wing extremists, evidence no bias and are no more favorable to the government than normal. However, US District Courts have judges, in particular the older ones, who clearly favor the tax collectors.
B. State of the Appellant
5. Taxpayer is not an attorney or a CPA and has no legal or tax education or training. The IRC is so complex and confusing that nobody, including taxpayer, can understand it. Mrs. M. is a simple working woman and tries to obey the IRS procedures as best as she can.
6. For the year in question, Taxpayer may not have made enough money to file tax returns after adjusting for her expenses. M. did not believe she had a duty to file a 1040 Tax Form due to her low income.
7. This case originally involved three tax years, 2000, 2001 and 2002. However, tax year 2000 and 2002 have been otherwise disposed of and are no longer a part of this case. This case only deals with tax year 2001.
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The IRS issued the Notices of Deficiency for these three tax years but Taxpayer did not petition the Tax Court to contest the deficiency determination and therefore the tax liability is not in question. When she had a chance, she did not adjust the tax to zero with an accounting of her cost of doing business.
Appellant may not have been obligated to file tax returns due to her low income, but due to her failure to object, the tax service made an assessment against her and then proceeded to collections.
C. The CDPH Request
8. On April 5, 2006, the IRS sent to taxpayer the “Notice of Your Right to a Collection Hearing” under IRC §6330. Taxpayer timely sent in her Collection Due Process Hearing (CDPH) Request on May 4, 2006. After much correspondence with the Appeals Division, on November 30, 2006 they sent her a Notice of Determination.
Part 1: SUBSTITUTE REQUEST
9. Taxpayer’s original CDPH Request dated May 2, 2006, was classified by the IRS as frivolous and groundless and did include many legal arguments published years later on the tax service website as frivolous and groundless. However, taxpayer did not know at the time of her initial request
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what arguments the Treasury Department would later publish on their website.
On December 27, 2006, taxpayer sent her Recall Letter (Appe #03) whereby she withdrew her original CDPH Request and substituted a revised request form 12153 of the same date. She submitted her revised CDPH Request because the IRS told her to do so. She nullified, withdrew, and cancelled her original hearing request. And therefore, it was no longer a part of this case.
10. Appellant’s new substitute CDPH Request Form dated 27 Dec 06 is standard, correct, and has been used in hundreds of cases, The IRS accepts this CDPH request and this standard form does not include any “frivolous or groundless” particulars whatsoever.
11. The Appeals Division decided that M. could not have a collection hearing and issued the Notice of Determination on November 30, 2006. On January 3, 2007, Petitioner timely filed her Petition to the Tax Court (Appe page 05 doc # 01).
12. The main issue in this case and an important one is whether a taxpayer can withdraw frivolous arguments and file forms that are perfectly acceptable to the IRS and tax court.
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13. For the tax year 2001, Petitioner timely filed her request for a CDPH. Petitioner later admitted that she raised arguments classified by the IRS as frivolous/groundless and which are now posted on the IRS website as frivolous. Petitioner did not own a computer at the time of the filing of her first CDPH Request. Further, the IRS at that time had not made public their frivolous and groundless list.
14. Taxpayer has no education, training or experience with tax law or procedure, or with the tax court and IRS administration. The tax code and procedure have been classified by the courts as complex and confusing. Nobody knows what it says or means.
15. Taxpayer readily admitted that her initial filings with the IRS were unacceptable. After two letters from the Settlement Officer telling her to correct her position, she did so.
16. On December 27, 2006 she filed her recall letter and substitute CDPH request. After that, she filed her Petition in the tax administrative court to Re-determine the NOD.
17. She withdrew all of her frivolous positions and submitted arguments which have always been found acceptable to the IRS and tax court. Mrs. M. had learned her lesson and did not file any pleadings in this court that would be considered frivolous.
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18. The court in its Memorandum Opinion dated May 20th, held: “Petitioner cannot undo that which has occurred. Her position change…is too late….” The court erred in this finding which should be overruled.
19. The issue raised in this appeal is that Petitioner can amend her position to one that is acceptable to the Appeals Department. Her main ground is that the complexity of the tax code makes it impossible for anybody to understand it except retired District Counsels or high-priced tax attorneys that nobody can afford.
20. Taxpayer did the best she could and she paid good money to various political activists who had no understanding of tax law and procedure. Therefore she was led to file arguments that were not acceptable to the IRS. Prior to petitioning the tax court, she recognized a possible error and completely changed her position.
21. The issue before this court is whether she can change her position prior to her Petition in tax court. Her recall letter and substitute CDPH were received by the Appeals Department and her changed position was unmistakable. This court recognized that there was a position change, but held it was too late.
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22. The Appeals Officer told taxpayer twice to amend her position without giving any deadline. He did not inform her that no change was possible. In May of 2006 Petitioner had a phone conversation with Appeals Officer Bart Hill. He told Petitioner to wait until the next letter arrived before doing anything. The next letter received by Petitioner was the Notice of Determination dated November 30, 2006.
23. Taxpayer did change her position prior to petitioning the tax tribunal. The issue is clear that taxpayer is entitled to correct her position, withdraw unacceptable arguments and substitute acceptable CDP request. Petitioner has the right to correct her mistakes. The grounds for overruling the decision below include the grounds that the tax code has been found by the courts to be incomprehensible, unfathomable and unintelligible.
24. Congress is the problem here, not petitioner. The courts upholding an unworkable law will prevent any reform and any improvement in a disastrous tax system.
Part 2: A Real Hearing is Required
25. Taxpayer requested an in-person hearing and she is entitled to it if she fulfills the requirements of the Congress. The IRS has an additional requirement
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that no frivolous positions be argued, however this is not supported by the law.
In her original CDPH request, dated May 2, 2006, taxpayer barely, unclearly raised positions required by IRC §6330. She challenged the IRS on procedural irregularities which is a valid position allowed by Congress.
26. US Tax Court has ruled many times that taxpayers are entitled to an in-person hearing in a CDPH case if they raise at least one position that is required by the Congress. In the case of Marrett v. CIR Docket 4048-061, July 7, 2006, the tax court held that one barely discernable valid position in a midst of invalid positions was sufficient to require a face-to-face hearing. Copy of Marrett case attached.
27. Mrs. M. clearly and definitely made numerous requests for an in-person conference. Beyond doubt, the settlement officer denied her a face-to-face hearing. Therefore the secondary issue before this court is whether the Marrett criteria will be upheld.
Incidentally, the tax collectors proceeded with enforced collections even though IRC §6330 specifically prohibits this until the CDPH proceedings have been concluded.
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V. ARGUMENTS
Issue A. The Effect of the Recall Form
28. The facts are undisputed:
a. Taxpayer initially submitted a Collection Hearing Request which the IRS classified as frivolous and groundless.
b. Taxpayer recalled the original request and submitted an acceptable form.
c. The trial Judge did not accept the correction and amendment.
d. The Internal Revenue Code is complex and everybody makes many mistakes.
29. Taxpayer filed her original Request for a Collection Due Process Hearing on request Form 12153 for tax year 2001 on May 3, 2006. On December 27, 2006 she sent the Appeals office her substitute request for CDPH on form 12153 for tax year 2001. Mrs. M. also sent to Appeals her recall letter (Appe 03), which explained very clearly that she recalled and withdrew the old CDPH Request form and substituted it for the new CDPH Request form.
30. She stated in her Recall Letter: “Please disregard the original CDPH Request form as if it never existed. The IRS does not like what I stated on the form.” The new, substitute CDPH Request form is standard, correct and has been used in hundreds of cases. The IRS accepts this type of CDPH
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request and does not allege that it includes any “frivolous or groundless” particulars.
She also stated: “The Internal Revenue code is very complex and difficult. Neither I nor anybody else understands it; however the information I previously used was not popular with the tax agents.”
31. Due to the recall letter and substitute CDPH Request, most of the IRS position is no longer material and relevant. The tax people were concerned almost completely concerned with the old “frivolous and groundless” positions. However all of these have been canceled and nullified. The substitute form does not have any political, religious or economic arguments and has never been found “frivolous and groundless,” even though it’s been used in hundreds of other cases.
32. For tax years 2003, 2004, 2005 as well as 2001, the IRS has greatly inflated income figures on Appellant from incorrect third-party payer’s data. Taxpayer is 64 years old, retired on social security and was not employed full time those years. However taxpayer’s name and Social Security number were used by other people in a business enterprise. Somewhere, somebody in the IRS needs to correct these figures. Taxpayer owes no income tax for those years and wants to meet with the IRS for some kind of settlement.
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33. In the case below, District Counsel repeatedly argued that Mrs. M. claimed that income tax was voluntary, etc. This is no longer true because she withdrew those old arguments. These statements may have been in the original CDPH Request, which was withdrawn, but were not mentioned in her amended CDPH Request, which was the only request to be considered by the Tax Court. She presented several relevant issues as Congress requires in her substitute request form.
34. The tax court led by District Counsel made a great issue of her original request form; however, this had been withdrawn and really no longer part of the case. The trial judge erred by not accepting the correction of error.
35. Throughout the case, the highly-educated tax attorney for the Commissioner falsely stated position of Mrs. M.. The positions the tax service claimed throughout as “frivolous” were withdrawn and no longer existed. The issues raised by Taxpayer were listed in her Amended CDPH Request. This Amended Request did not have any political or Constitutional issues or anything that the IRS has classified as “frivolous.” Therefore, she did not make a frivolous claim.
36. She did have relevant matters to discuss at the face-to-face conference including collections alternatives and the matters mentioned in her Amended
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Request. Collection alternatives can be discussed at the hearing and the necessary forms can be submitted at the hearing. Congress has not placed any prerequisites for having a face-to-face hearing such as Appeals has claimed. This is explained fully in her Petition to the tax court (Appe 05: Doc #01) and other pleadings.
Issue B. The face-to-face hearing was required
37. Pursuant to IRC § 6330, Petitioner requested a Collection Due Process Hearings for a levy for the tax period 2001 within 30-day time period allowed by statute. IRC §6330 deals with levies and IRC §6320 deals with liens. Otherwise, the two statues are almost identical.
38. Congress has set forth three pre-conditions for Collection Due Process Hearing (herein referred to as CDPH),
a. Petitioner must make request
b. Petitioner must make request in a timely manner, 30 days.
c. Petitioner must state the purpose of the hearing which includes collection alternatives, procedural irregularities, spousal relief and tax liability in some cases.
39. Petitioner complied with all of these. However, as to Requirement C, her initial request had a barely discernable argument on procedural irregularities. But then, she amended her paperwork and the final result is and always has been acceptable to the IRS/Tax Court.
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40. The IRS has preconditions for taxpayer not to raise political, Constitutional and religious concerns or the requested hearing will be denied. Petitioner complied with these imaginative preconditions in her substitute request form. In any event, the Congressional enactment does not mention improper arguments or punishment for them.
IRS has other irregular and interesting preconditions such as filling out forms and submitting a payment schedule. These requirements are impossible since Petitioner does not know what the IRS wants until she meets with them. Petitioner is not required to do these and did not.
41. The IRS illegally and wrongfully withheld her requested hearing, has violated her statutory rights and administrative due process rights to appear at a hearing. Instead, Appeals scheduled some unknown type of telephone conference. Taxpayer is entitled by law to a hearing, meaning a face-to-face hearing. At the in-person conference, she has a right to tape record and present witnesses. These and other rights are not allowed in a telephone conversation.
42. The trial court erred by denying her a face-to-face conference on the grounds she did not meet the prerequisites of the IRS. However, these hoops to jump through were not mentioned in the statute, but in the imagination of some low level administrative agent.
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43. The decision of the lower court denied an in-person conference should be overturned and the case remanded to the Appeals Division for a real Collection Hearing as Congress requires.
IV. Conclusion
44. Unknown to the populace, the bench of the Tax Court is right fair to taxpayers, even those who represent themselves. Mrs. M. has the right to correct her errors and has the right to an in-person-hearing. The lower court erred in these two areas and therefore that decision should be overturned.
VI. Certificate of Service: I hereby certify that on this date I sent properly a copy of this brief to opposing counsel: _______, Attorney Appellate Section, DOJ, Tax Division, Appellate Section, P.O. Box 502, Washington, DC 20044
______________________________ Date: September 26, 2009 Marian L. M. , Attorney Pro Se Wichita, KS 67211
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UNITED STATES TAX COURT
WASHINGTON, DC 20217
THOMAS WANE MARETT, )
Petitioner )
v. ) Docket No. 4048-06l
)
)
COMMISSIONER OF INTERNAL REVENUE, )
Respondent )
O R D E R
This matter is before the Court on respondent’s Motion for Summary Judgment, filed May 10, 2006, and respondent’s Motion for Penalty under I.R.C. Section 6673, also filed May 10, 2006. As motions, without prejudice, and remand this case to respondent’s Office of Appeals.
Background
On May 17, 2004, respondent mailed a notice of deficiency to petitioner for the taxable year 2000. In the notice of deficiency, respondent determined a deficiency attributable to petitioner’s failure to report nonemployee compensation, an IRA distribution, and interest income. Respondent also determined that petitioner was liable for additions to tax under section 6651 (a) (1) (failure to file a return) and section 6654 (failure to pay estimated tax). [1]
On October 12, 2004, petitioner filed a petition for redetermination with the Court at docket No. 19642-04. On January 7, 2005, the Court entered an Order of Dismissal for Lack of Jurisdiction on the ground that the petition at docket No. 19642-04 was not timely filed. [2]
On May 23, 2005, respondent issued to Petitioner a Final Notice of Intent to Levy and Notice of Your Right to a Hearing under section 6330 regarding his unpaid tax for 2000. On or about June 14, 2005, Petitioner timely submitted to respondent a Form 12153, Request for a Collection Due Process (CDP) Hearing. Petitioner’s request stated:
I request collection alternatives including OIC [offer in compromise] and payment schedule. Collection actions are inappropriate. Procedural defects by the IRS exist.
By letter dated September 12, 2005, respondent’s Appeals Office in Charlotte, North Carolina, informed Petitioner that his case was assigned to that office for consideration and that his review would proceed by telephone, mail, and/ or personal interview. By
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letter dated September 15, 2005, petitioner informed the Appeals Office that “we request a persona interview/hearing, and do not wish to conduct this interview/hearing via telephone.” By letter dated October 24, 2005, Appeals officer K. Keeley informed petitioner that she had received his request for a hearing, that “items that you mentioned in your previous correspondence are items that are frivolous or groundless or are moral, religious, political constitutional, conscientious, or similar grounds”, and that petitioner was not entitled to a face-to-face hearing based on the items set forth in his request or a DCDP hearing. The Appeals officer further informed petitioner that she was scheduling a correspondence conference for him on November 21, 2005 at 11:00 am, and that petitioner should submit a collection information statement and demonstrate that he was current in all Federal tax return filings and deposit requirements before the hearing. By letter dated November 2, 2005, Appeals Officer Keeley forwarded to petitioner a Form 4340 (Certificate of Assessments, payments, and Other Specified Matters) for 2000. By letter dated November 2, 2005, petitioner against asserted that he wanted to discuss collection alternatives and that he wanted to bring all required documents to a face-to-face hearing. The parties subsequently exchanged additional correspondence dealing whether petitioner was entitled to a face-to-face hearing.
On January 27, 2006, respondent issued to petitioner a Notice of Determination Concerning Collection Action(s) Under 6320 and/or 6630 determining that it was appropriate to proceed with the proposed levy. On February 24, 2006, petitioner filed a petition for lien or levy action (collection action) with he Court. In the petition, petitioner stated that he was denied a proper administrative hearing under section 6330. Respondent timely filed an answer to the petition and then filed the motions currently pending before the Court. Petitioner filed an opposition to respondent’s Motion for Summary Judgment.
This case was called for hearing at the Court’s Motions Session in DC, on July 5, 2006. Counsel for respondent appeared at the hearing and offered argument in support of respondent’s two motions. There was no appearance by or on behalf of petitioner and the hearing nor did petitioner file a written statement pursuant to Rule 50(c).
During the hearing, the Court directed respondent’s attention to the Form 4340 (attached to an exhibit to the Declaration offered in support of respondent’s motion for summary judgment) concerting petitioner’s account for 2000 and, in particular, the fact that on October 4, 2004, respondent assessed a penalty for failure to pay tax in the amount of $805.77. [3]
Counsel for respondent conceded that no such penalty had been determined in the notice of deficiency that respondent issued to petitioner for 2000.
Discussion
Summary judgment under Rule 121 is appropriate when there is no genuine issue as to any material fact and a decision may be rendered as a matter of law. Krause v. Commissioner, 92 T.C. 1003, 1016 (1989). The moving party bears the burden of proving that there is no genuine issue of material fact. Dahlstrom v. Commissioner, 85
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T.C. 812, 821 (1985). In deciding a motion for summary judgment, the Court will construe factual inferences in a manner most favorable to the opposing party. Naftel v. Commissioner, 85 T.C. 527, 529 (1985).
Respondent contends that the record is devoid of any grounds upon which this Court could find that the Appeals Officer abused her discretion in determining that respondent could proceed to collect petitioner’s unpaid tax for 2000 by levy. Respondent asserts that petitioner failed to raise any valid issues during the administrative proceedings and that a face-to-face administrative hearing was unnecessary and unwarranted.
Section 6330 provides that a taxpayer is entitled to an administrative hearing before an impartial Appeals Officer before respondent may proceed to collect unpaid taxes by way of a levy. A taxpayer may raise at an Appeals Office hearing any relevant issue relating to the unpaid tax or proposed levy, including (1) appropriate spousal defenses, (2) challenges to the appropriateness of collection actions, and (3) offers of collection alternatives, which may include n installment agreement of an offer-in-compromise. Sec. 6330(c)(2)(A). the taxpayer may also raise challenges to the existence of amount of the underlying tax liability if the person did not receive a statutory notice of deficiency. Sec 6330(c) (2)(B). In addition, the Appeals officer is charged with verifying that the requirements of any applicable law or administrative procedure have been met. Sec. 6330(c)(1).
Treasury regulations provide that respondent must offer the taxpayer an opportunity for a face-to-face administrative hearing at the Appeals Office closest to the taxpayer’s residence. Sec. 301.6330-1(d)(2), Q&A-D7, Preced. & Admin Regs. Where the taxpayer raises only frivolous arguments, however, we have held that it is not an abuse of discretion to deny the taxpayer a face-to-face hearing. See Lunsford v. Commissioner, 117 T.C. 183, 189 (2001) (declining to remand the case to the Appeals Office because the taxpayer raised only frivolous arguments); see also Wright v. Commissioner, T.C. Memo. 2005-291 n.4. In such cases, a face-to-face hearing is not necessary and would not be productive. See, e.g., Lunsford v. Commissioner, supra.
Where a taxpayer advances both valid and frivolous arguments, we have allowed the taxpayer to pursue the former while cautioning the taxpayer to abandon the latter. See Keene v. Commissioner, 121 T.C. 8, 19 (2003) (remanding case to Appeals Office by admonishing the taxpayer not to advance frivolous arguments); Bean v. Commissioner, T.C. Memo. 2006-88 (Government’s motion for summary judgment was denied because the record “did not foreclose the possibility that [the taxpayer] might have raised valid arguments had a hearing been held.”). Respondent’s internal operating procedures appear consistent with the Court’s approach. See Internal Revenue Manual 8.6.1.2.5.(2) (May 13, 2004) (“Face-t-face conferences will no longer be offered to or allowed for taxpayers who only raise frivolous issues”) (emphasis added).
Viewing the facts most favorably to petitioner, as we must given respondent’s motion for summary judgment, we conclude that material issues of fact are in dispute and that, on this record, respondent is not entitled to judgment as a matter of law. As a preliminary
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matter, it appears to the Court that Appeals Officer Keeley acted prematurely in labeling as frivolous and groundless the issues raised in petitioner’s hearing request. To the contrary, petitioner’s hearing request raise valid issues, including alternatives to collection and potential procedural defects. Considering respondent’s concession at the hearing on this matter that respondent may have improperly assessed and addition to tax (“penalty”) for failure to pay tax, it appears that the Appeals Officer may have failed to properly verify that all applicable laws and/ or administrative procedures were satisfied in this case. Under the circumstances, we shall remand this case for further administrative proceedings before a new Appeals officer who has had no prior involvement with respect to the unpaid tax. Either or both parties shall be permitted to make and audio recording of the administrative hearing. Keene v. Commissioner, supra.
In remanding this case, we add a strong word of caution to petitioner who has been less than revealing in his dealings with the Appeals Office and the Court. We remind petitioner that he must be current in his Federal tax obligations, see, e.g., sec 6012 (a), in order to make and offer-in-compromise or to qualify for an installment agreement. In addition, petitioner should be prepared to submit to the Appeals Office complete and accurate financial information in support of a collection alternative. Should the Court subsequently determine that petitioner used these proceedings primarily for purposes of delay and/or to advance frivolous and groundless arguments, the Court will strongly consider imposing a penalty on petitioner pursuant to section 6673(a). See Pierson v. Commissioner, 115 T.C. 576 (2000).
Upon due consideration and for cause, it is
ORDERED that respondent’s Motion for Summary Judgment, filed May 10, 2006, and respondent’s Motion for Penalty Under I.R.C. Section 6673, also filed May 10, 2006, are denied without prejudice. It is further
ORDERED that this case is remanded to respondent’s Appeals Office for the purpose of affording petitioner a face-to-face administrative hearing pursuant to section 56330 for the purpose of discussing any valid issue (as more fully discussed in this Order) that petitioner may present. Among other issues, the Appeals officer shall verify that respondent properly assessed and addition to tax for failure to pay under sec 6651 (a)(2) for 2000. It is further
ORDERED that respondent shall offer petitioner an administrative hearing at respondent’s Appeals Office located closest to petitioner’s residence (or at such other place as may be mutually agreed upon) at a reasonable and mutually agreed upon date and time, but no later than September 15, 2006. The administrative hearing shall be conducted before a new Appeals Officer who has had no prior involvement with respect to the unpaid tax for 2000. it is further
ORDERED that each party shall, on or before October 20, 2006, file with the Court, and serve on the other party and report regarding the then present status of this case. Respondent shall attach as exhibits to his report (1) a supplemental notice of
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determination and (2) a reasonably current transcript of account (Form 4340, blue ribbon copy) for petitioner’s account for 2000. It is further
ORDERED that jurisdiction over this case is retained by the undersigned.
S/ Robert N. Arman, Jr.
Special Trial Judge
Dated: Washington, D.C.
July 7, 2006
________________________________________
[1] All section references are to the Internal Revenue Code, as amended, and all Rule references are to the Tax Court Rules of Practice and Procedures.
[2] Petitioner’s motion to vacate was subsequently denied by this Court, and petitioner’s appeal to the Court of Appeals for the 4th Circuit was ultimately dismissed for failure to prosecute.
[3] See sec 6651(a)(2).
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